‘Duty to protect’ rule still ambiguous, costs Georgia psychologist $280,000

By The National Psychologist Editor
November 1, 2000 - Last updated: May 31, 2011

Nearly a quarter of a century after Tarasoff, many psychologists still find themselves between the proverbial rock and a hard place in deciding when to breach confidentiality and when to warn potential victims of imminent danger.

Ever since the 1976 Tarasoff ruling in California established the duty to warn and protect, therapists are caught in no-win situations. They can be held liable for a patient’s violence or be liable for breaching the same patient’s confidentiality.

Many states have adopted the Tarasoff rule, although the response by state courts and legislatures have varied widely. Some restrict the application of Tarasoff, some have broadened it and some have not addressed it in any fashion.

One state that has not adopted Tarasoff is Georgia, but that may change next year, in the aftermath of a civil judgment against a Smyrna psychologist. He was sued by a police officer who allegedly made threats against his precinct captain and chief of police following a psychological assessment.

The Georgia Psychological Association will seek legislation in the next session that would grant limited immunity to psychologists who exercise their duty to warn or protect in good faith, according to Anthony Stone, Ph.D., the defendant in the case brought by the police officer.

In August 1995, Stone was asked by another psychologist, James Gonzales, Ph.D. to do an evaluation to determine fitness for duty. During that evaluation, Stone, considered an expert in police evaluations, said that the police officer told him he had fantasies of killing his police supervisors and anyone else who got in the way.

When the police officer agreed to an increase in his level of care, including hospitalization or a day program, Stone said he didn’t feel the need to warn the individuals who had been named as potential victims.

Stone said that in his 23 years of practice during which he has seen 30,000 individuals, he had never issued a Tarasoff warning.

When the police officer changed his mind two weeks later about going into a structured care program, Stone notified the police officials that the officer had mentioned he fantasized about killing.

The police officer lost his job and he sued Stone for breach of confidentiality. A jury awarded the officer $280,000 in damages.

While most duty to protect cases involve failure to warn potential victims, Stone’s case, while not unique, represented the flip side of the equation. He issued the so-called Tarasoff warning and was sued anyway.

Martin Williams, Ph.D., a leading forensic psychologist in California, called the jury verdict “horrible,” but a case that could have prevented if Georgia had adopted Tarasoff or some other rule that sets forth the conditions under which the duty to protect is warranted.

He said Stone’s actions were reasonable and necessary to protect the welfare of those who the Georgia psychologists felt were threatened.

Similarly, John Fleer, J.D., who has wide experience in defending psychologists, said in states that have no Tarasoff rule, it is many times a “judgment call” on the part of mental health professionals when to exercise the duty to warn or protect.

Fleer said the best advice he can give psychologists is to “document everything.”

“If you don’t have documentation, you had better have a good reason,” he said.

Stone said he was torn between a state law that forbids breaching confidentiality except in child abuse cases and a Georgia Board of Psychology rule that implies that the “private privilege ends where public peril begins.”

Part of the jury’s reasoning in granting the award was that Stone waited two weeks before notifying the individuals he felt were in danger.

If the danger were imminent, he should not have waited, the jury was convinced.

Stone said he would do the same thing again in the same situation.

“If there is any good that came out of this case, it’s that there was a mild outcry from the whole Georgia psychological community, Stone said.

“The law in Georgia is ambiguous. That’s why there is movement now to enact a law to provide some protection for psychologists in similar situations.”

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